The Constitution & The Judicial BranchDiscuss Judge orders reopening of DACA, after 90-day delay at the Political Forums; Another Federal judge has substituted his personal preference for the rule of law declaring the DACA program cannot be shuttered.
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Another Federal judge has substituted his personal preference for the rule of law declaring the DACA program cannot be shuttered.

Quote:

Similar to the other rulings, Judge John Bates concluded that the wind-down of DACA was "arbitrary and capricious" because the Department of Homeland Security failed to "adequately explain its conclusion that the program was unlawful." The judge also accused the government of providing "meager legal reasoning" to support its decision.

The President's authority to rescind the executive executive order creating DACA must be subject to the judge's whim. Oh wait, Obama created DACA by executive order after declaring in 20 speeches he didn't have the authority to do so but President Trump must plead before a Federal judge to discontinue it. The double standard and judicial overreach are blatant.

Another Federal judge has substituted his personal preference for the rule of law declaring the DACA program cannot be shuttered.

The President's authority to rescind the executive executive order creating DACA must be subject to the judge's whim. Oh wait, Obama created DACA by executive order after declaring in 20 speeches he didn't have the authority to do so but President Trump must plead before a Federal judge to discontinue it. The double standard and judicial overreach are blatant.

A George W. Bush appointee to the US District Court for the District of Columbia, Bates delayed the implementation of his ruling "to allow the agency an opportunity to better explain its rescission."
In response to the ruling, the Justice Department said it stands by its original reasoning, calling DACA an "unlawful circumvention of Congress," and that it intends to continue making its case to the courts.
"The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner," spokesman Devin O'Malley said in a statement. "Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation."
In his 60-page decision, Bates took the administration to task for its justification for ending DACA, which was almost entirely based on a threat from Texas and a handful of other states to challenge DACA in court.
Bates called the move "particularly egregious" given the hundreds of thousands of DACA recipients, young undocumented immigrants who came to the US as children, protected under the program over its five years. Given how many people's lives were built on the protections from DACA, Bates said, "its barebones legal interpretation was doubly insufficient."
Bates concluded that the argument that a Texas court would have likely immediately halted the program "was so implausible that it fails even under the deferential arbitrary and capricious standard."

Translation of this thread...

Judges apply existing standards of the law and conservatives don't like the outcome.
It's magically the "whim of the judge".

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Originally Posted by FrancSevin

DACA is not a law. How can it be "unlawful" to rescind it.

If you were truly interested in that answer, you would read the ruling.

Quote:

Originally Posted by FrancSevin

No judge at any level, can make law. Or a ruling outside of law.
President Trump gave the Congress 6 months to make DACA, or something like it, a law.
They didn't.
Case closed

Except it's not closed, is it...

You seem to be under the delusion that Trump "... giving the Congress 6 months to make DACA, or something like it, a law" is all that's necessary.
That's your first mistake.

__________________
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”
~Abraham Lincoln

Judges apply existing standards of the law and conservatives don't like the outcome.
It's magically the "whim of the judge".

If you were truly interested in that answer, you would read the ruling.

Except it's not closed, is it...

You seem to be under the delusion that Trump "... giving the Congress 6 months to make DACA, or something like it, a law" is all that's necessary.
That's your first mistake.

What existing standards? Obama issued an E O instituting a ruling which he himself stated he could not do, and now President Trump told Congress to come up with a plan or he would rescind the EO, which he clearly can do.

Judge is not ruling, which is his job, but creating law, which he can't.

What existing standards? Obama issued an E O instituting a ruling which he himself stated he could not do, and now President Trump told Congress to come up with a plan or he would rescind the EO, which he clearly can do.

Judge is not ruling, which is his job, but creating law, which he can't.

Just a note but, a Presidential Executive Order is not a law either. Separation of Powers says only Congress can make laws. An EO is a matter of function instructions for the Executive Branch. And such instructions, empowered only by the Chief executive's directions, generally evaporate with a new President. So how can a Judge, at any level of our judiciary, rule on it's enforcement?

Apologies to FI but my question stands. Your feint didn't answer it either. And yes I read the ruling.

__________________
I am going to hang a Batman Costume in my closet. .......... Just to screw with myself when I get alzheimer's.
sola gratia, sola fide, sola scriptura.

Just a note but, a Presidential Executive Order is not a law either. Separation of Powers says only Congress can make laws. An EO is a matter of function instructions for the Executive Branch. And such instructions, empowered only by the Chief executive's directions, generally evaporate with a new President. So how can a Judge, at any level of our judiciary, rule on it's enforcement?

Apologies to FI but my question stands. Your feint didn't answer it either. And yes I read the ruling.

Correct. an EO amounts to a ruling. A temporary ruling. It stands until a President rescinds it.

I'm not sure that Congress can rescind an EO. They must pass a law overturning it. That's what Trump asked them to do. Or he would rescind.

to borrow Jimbo's words: "Judge is not ruling, which is his job, but creating law, which he can't."

See how sleazy that is?

__________________
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”
~Abraham Lincoln

An executive order in the United States is an order issued by the President, the head of the executive branch of the federal government. Executive Orders are generally orders to staff of the executive branch and not to the citizens of the country. Article I, Section 1 of the US Constitution specifically reserves all federal legislative authority to Congress, not the president. In other countries, executive edicts can serve a legislative function. Such edicts may be known as decrees, or orders-in-council.

Executive orders may also be issued at the state level by a state's Governor or at the local level by the city's Mayor. The term "Executive Orders" and the numbered list of them were created in 1907, but U.S. Presidents have issued instructions that are retroactively labeled Executive Orders since 1789, usually to guide officers and agencies of the Executive branch in managing the operations within the Federal Government itself. Executive orders can have the full force of law if they are made in pursuance of certain Acts of Congress, some of which specifically delegate to the President some degree of discretionary power (delegated legislation). Other Executive Orders not authorized by Congress are claimed to have their authority for issuances based in a power inherently granted to the Executive by the Constitution. It is these cited or perceived justifications made by a President when authoring Executive Orders that have come under criticism for exceeding Executive authority and have been subject to legal proceedings even at various times throughout U.S. history concerning the legal validity or justification behind an order's issuance.

Although there is no Constitutional provision or statute that explicitly permits Executive Orders, there is a vague grant of "executive power" given in Article II, Section 2, Clause 1 of the Constitution, and furthered by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 4, that has been construed as justification for the legal weight of Executive orders. Presidents have used this Constitutional reasoning as a basis for an authorization that allows for the issuance of Executive orders as part of carrying out the President's sworn duties,[1] the intent typically being to help direct officers of the US Executive carry out their delegated duties as well as for compliance with current statute in the regulating of normal operations of the Federal Government -- in spite of the fact, Article I, Clause 1 specifically grants all federal legislative authority to the United States Congress:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

For this reason, many Executive Orders cite authorization from specific acts of Congress rather than vague or perceived powers somehow granted to the Executive without explicitly saying so in the Constitution. Those Executive Orders that are not authorized through Congressional acts frequently contain some other purported justification such as the reference above to "executive power" in Article II, Section 1. These justifications have largely gone untested by the Courts for their validity however.

The President does, of course, have the authority to issue orders to officers and employees of the executive branch and to penalize non-compliance by removing such officers and employees from office. This is much the same power that the president of a private company has over his employees to dismiss them if they do not follow his instructions. Such authority may be proper and Constitutional provided that the President does not order executive branch employees to carry out unlawful or unconstitutional acts.

Presidential directives are considered a form of executive order issued by the President of the United States with the advice and consent of a major agency or department found within the Executive branch of government. Some types of Directives are:
• National Security Directives
• Homeland Security Presidential Directives (presidential decision directives)

Until the early 1900s, the term "Executive Orders" had not even been invented. Presidential instructions to executive branch staff that would later be characterized as "Executive Orders" went mostly unannounced and undocumented, seen only by the agencies to which they were directed. However, the Department of State instituted a numbering scheme for Executive Orders in 1907, starting retroactively with an order issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as "Executive Orders" probably gained their name from this document, captioned "Executive Order Establishing a Provisional Court in Louisiana."

Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an Executive Order other than, of course, the US Constitution which reserved all federal legislative authority to Congress. This issue was paramount in the Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws under which they are acting when issuing new Executive Orders.

Despite the provisions of Article I, Section 1 of the US Constitution that reserves all federal legislative authority to congress, Presidents have increasingly used Executive Orders as if they were equivalent to an act of Congress. Presidents have even issued Executive Orders to start entire wars despite the fact that Article I, Section 8 of the US Constitution specifically reserves to Congress the sole authority to declare war.

Wars begun by Executive Order include the 1999 Kosovo War during Bill Clinton's second term in office. However, all such wars have had authorizing resolutions from Congress. The extent to which the president may exercise military power independently of Congress and the scope of the War Powers Resolution remain unresolved constitutional issues, although all Presidents since its passage have complied with the terms of the Resolution while maintaining that they are not constitutionally required to do so. In fact, the US Constitution grants no war-making powers whatsoever to the President, only to Congress. Without the War Powers Resolution or other authorizing resolutions from Congress, Presidents lack any Constitutional war-making powers despite their far-reaching claims to the contrary. Congress has been notably unwilling to press this issue for political reasons, especially when a President has already ordered troops into battle and they have obeyed that order.

Congressional Recourse

If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority is often required to override an Executive Order.

Congress is less likely to challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution. As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.

In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers. In one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.
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